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Monday, October 26, 2009

Breaking Through: Why is there still resistance to victim rights in the justice system?

Since so many countries have granted rights to crime victims, guaranteed in legislation, surely this means that each and every victim will receive the full benefit of these rights?

Unfortunately, no.

Rights for victims of crime and abuse of power has been a popular political issue for some time; after all, what office-holder would want to be seen as being against helping the injured and weak?

While the actions of politicians and governments have been welcomed, we need to recognize that simply enacting a law -- or legislating a right -- into existence does not mean it will be willingly accepted, completely embraced, actively promoted and fully funded by all the individuals, agencies and services it will affect.

While victims of crime receive sterling service from the vast majority of criminal justice system, there are constant reports from victims of both individuals and (at times) entire offices offering poor service or showing a lack of empathy. This resistance to supplying the information, services and support which law or policy requires that victims be given becomes the source of a form of re-victimization. The crime victim loses all sense of control and worth to officials of a seemingly uncaring criminal justice system, and certainly loses any sense of satisfaction with the justice system.

Resistance to fully accepting and implementing these relatively new rights is normally seen through several different behaviours. Each of these three commonly seen behaviours also has a different potential remedy (or set of remedies).

Individual attitudes

Political inertia

Systemic resistance

We'll take a look at these one at a time.

Individual attitudesWhen it comes to applying basic victim rights, such as the right to be informed of available social services, or the right to be kept informed of case development, much is left to up the individual police officer, detective, or prosecuting attorney. Their personal views on the importance of victim rights, and the impact workplace issues such as case load and funding, can greatly influence the manner in they comply with regional law or agency policy on the application of victim rights.

Let's face it, the criminal justice system is a high-pressure environment. A busy police officer may forget to inform crime victims of the availability of victim services. Harried detectives can overlook giving victims case updates. An underfunded prosecutor with a heavy case load may cut corners. These are situations which, while deplorable, are understandable. Yet, time and time again, victims of crime report that individuals within these agencies show not only occasional forgetfulness, but a shocking lack of understanding -- if not actual disregard -- for the rights granted victims by law and demanded by policy.

Victim Participation and Therapeutic Jurisprudence"In a recent study on victims' experiences in the Quebec criminal courts, Wemmers and Cyr (2006) found that victims were not systematically informed about the services available to them. Most victims were not asked by police if they wanted information about victim support and most did not know where to go for help or information. This might not be an issue if the victims in this study were not affected by their victimization, but almost three-quarters of respondents were victims of violent crime and most victims said that they were affected by the crime. In all, 45% of the victims who participated in the study showed symptoms of PTSD."

In individuals, this disregard may be rooted in a lack of empathy (simply not understanding what victims are going through, and why these rights are important), a simple resistance to change ("we've never had to do this before"), or the individual may be suffering from professional burnout (they have seen so much pain they no longer wish to deal with it; this is a form of caregiver stress).

No victim should accept less than reasonable service and their full rights under the law. Don't be afraid to speak to a superior at the agency in question; they may be able to supply a reasonable answer as to why the incident in question occurred. Alternatively, they may not be aware of the behavior of the person in question. Often sensitivity training on victimization (its effects and why providing victim rights and services provide tangible results) can help overcome individual issues for staff finding it difficult to see why providing the services are important.

As mentioned, such behavior in a representative of the justice system can also be caused by burnout. If a staff person shows evidence of psychological stress or burnout, supervisors need to know; victims may not realize the seriousness of the traits being exhibited. The concern is for the mental health for the employee, as employees in this field can develop their own form of PTSD from their constant exposure to horrendous cases of victimization.

Never be afraid to speak up if you suffer poor treatment. You will be helping the agency in question learn to deliver better service to future victims, and you may well be helping agency staff.

However, where a number of individuals within an agency or service display the same traits, we are likely looking at an issue of systemic resistance, which we will cover shortly.

Political inertiaAs I mentioned earlier, few politicians want to be seen as being hard on victims, or soft on crime. The granting of theoretical victim rights via legislation generates strong political capital for those involved, which is one reason it is so popular. The hard work comes in creating effective programs which ensure authentic and needed services to victims.

A major component in this is providing sufficient funding. This is where the next level of resistance comes into play.

In the world of government funding, with a finite amount of resources, there is always fierce competition for money, whether between government offices, the funded agencies, or simply different levels of government (local, regional, national)

It is not unusual to see politicians pass bills which, while sounding wonderful, do not provide access to the funds needed for the legislation to actual work.

Adding Insult to Injury: Investigation into the treatment of victims by the Criminal Injuries Compensation Board (Ontario, Canada)"The primary reason for the Board’s colossal failure is that successive Ontario governments have been unprepared to fund the promises they have made to crime victims. The Province has proclaimed a grandiose program of support through the Compensation for Victims of Crime Act, but then imposed fiscal control so tightly that it has choked off not only the Criminal Injuries Compensation Board’s effectiveness, but its compassion as well. Today, the primary responsibility for this lies with the present government, and urgent action is needed."

The remedy to this form of resistance can only be political action and lobbying by advocacy groups and the general public. Join a victim rights organization, take part in advocacy programs, write to your government representatives. If you see a problem in services, get active!

Systemic resistanceThe final form of resistance to victim rights comes from groups or classes of people who, by training or by occupation, view the application of victim rights as threatening, or simply outside the scope of their work. Most often these are found in the court system.

By long tradition and training, members of the legal profession often view the criminal justice system as a dialog between two parties: the prosecution and the defense. The introduction of rights for a third party, in the form of the victim of crime with rights equal to the offender, is creating serious tension in today's court system.

...Defense attorneys are also wary of the influence that victims may have on plea agreements. And they point out that a victim's testimony, in bail or sentencing hearings, is not subject to the same cross-examination as is the testimony of other witnesses. Overall, they worry that inserting victims more broadly into the process pits the defendant against not one, but two, adversaries."

Judge: Defendant’s rights trump those of victims (USA)"Attorney Herbert S. Moncier, who represents Sudderth’s mother in a wrongful death lawsuit against Whiteside, alleged Sudderth’s survivors’ rights were violated when prosecutors and Whiteside attorney Gregory P. Isaacs struck a deal that allowed Whiteside to be arraigned a day early and his bond cut without a hearing.

But (Judge) Leibowitz opined that while prosecutors are required under the victims’ rights law to notify victims of any changes in hearing dates, they are immune from penalty if they fail to do so. She also opined that a defendant’s rights trump victims’ rights."

Some in the legal community take the view that giving rights to victims equals taking away rights from the accused. Others are concerned that overly emotional victim involvement will unduly sway judicial sentencing.

There is no easy remedy to this form of resistance. Certainly the legal aspects of this debate can only be settled in the manner normal in the courts when dealing with new law; by case-by-case testing and review, until a body of formal and common precedent establishes the precise limits to which they courts will accept victim interaction.

Changing professional attitudes is another matter. Victim advocates and legal educators are coming to believe that attitudes and ways of thought in the justice system can be best influenced by working on the next generation of lawyers and jurists. How? By providing training to law students on victim rights, the effects of crime, and other sensitivity training.

In other words, working to change the criminal justice system from within, by working to change the attitudes of the next generation of jurists. This will take time, but is the most likely way to change the present two-party court model (accused and prosecution) to a three-party model (victim, accused and prosecution).

I understand that the many safeguards of defendants' rights are in place to try to prevent wrongful convictions, and, up to a point, I think that's a good thing. Nobody wants to see the wrong person convicted of a crime. But, when the correct person uses the system to escape or ameliorate punishment for crimes he knows full well he is guilty of, something needs to be done.

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